Unions, reform groups gird for California-inspired lawsuit

In the wake of last week's Vergara v. California ruling, New York’s teachers unions and education reform groups are preparing to battle over expected legal action seeking to change the state’s tenure laws and possibly many other teacher protections.

Education reform groups like StudentsFirstNY and the New Teacher Project say a lawsuit against New York State inspired by the Vergara case could change local tenure laws and present a long-awaited opportunity to legally assess long-term sticking points with the unions, such as merit pay and seniority rules.

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The Vergara ruling, which is likely to be appealed, struck down key teacher protections in California and is expected to have reverberations across the nation.

“We certainly expect that these folks will file a lawsuit,” said United Federation of Teachers president Michael Mulgrew, referring to education reform leaders with whom he is in constant conflict. “They will use it for the media.”

“I would anticipate [a lawsuit] at some point,” said Daniel Weisberg, executive vice president and general counsel for the New Teacher Project, a reform-minded group that trains and places teachers in low-income, struggling schools.

The suit, Weisberg said, would likely “target the same statutes as in California, with the same basic legal theory.”

Groups like StudentsFirstNY, New Teacher Project and Families for Excellent Schools, along with reform leaders like Success Academy C.E.O. Eva Moskowitz, are all in support of the Vergara ruling and some are already identifying elements of New York’s tenure laws they’d want changed, though concrete legal action remains hypothetical.

Weisberg, who also worked at the Department of Education as a liaison between the U.F.T and the city, says he knows any lawsuit will have to be crafted differently than in the Vergara case.

“You can’t just photocopy the complaint from California and file it here,” he said. “It will take a tremendous amount of work, but the principles are the same.”

Jenny Sedlis, executive director of StudentsFirstNY and a co-founder of the Success charter school network, hinted at possible legal action last week and told Capital she thinks a potential lawsuit would be filed by parents who would, in turn, likely be guided and supported by a group like StudentsFirst.

But differences in California and New York’s courts may complicate any potential legal action, said Michael Rebell, a law professor and executive director of the Campaign for Fiscal Equity at Columbia’s Teachers College. “I think the New York Court of Appeals historically has been more cautious on these policy-making issues than the California Supreme Court.”

New York and California’s teacher tenure rules are broadly similar, with some important differences. Unions have argued that New York’s laws are significantly more stringent than California’s, while reform leaders say the two sets of laws are the same in essence if not in content.

While both states have a probationary period for new teachers, after which teachers are generally given tenure, New York’s is at least three years, while California’s is eighteen months. Union leaders say New York’s law allows for more time to help and observe teachers.

In California, unlike in New York, uncertified teachers can be awarded tenure, and disciplinary hearings for California teachers can legally extend far longer than similar hearings in New York.

Union-allied defenders of teacher tenure here also say New York City’s intensive and controversial new teacher evaluation laws ensure quality among teachers, and point out that tenure reforms implemented under the Bloomberg administration led to a significant decline in teachers approved for tenure.

Sedlis said a potential legal complaint would likely focus on lengthening New York’s probationary teaching period and changing the way teacher seniority is used.

She said the city’s controversial absent teacher reserve, a pool of teachers without full-time jobs but who are still paid by the city, is “a clear example of tenure gone wrong.”

Beyond probationary periods, certification requirements and evaluations, education reform leaders are looking to take on larger long-term sticking points between their groups and New York’s city and state teachers’ union, including merit pay.

“It’s more about what’s missing,” Weisberg said when asked what he would like changed about New York’s tenure laws. “Laws should require that highly effective teachers be rewarded in terms of compensation.”

Merit pay would be anathema for the U.F.T., and fundamental disagreements about pay based on performance prevented the union from agreeing to a contract under the Bloomberg administration.

Sedlis agreed that legal action would be an opportunity for “parents and advocates to give every aspect of the law a fresh look.”

“Countless policies can be challenged,” she said, adding that a lawsuit could “force some real changes at the management and policy levels.”

In other words, a lawsuit similar to Vergara's could be a vehicle to implement sweeping change to teacher rules and protections beyond tenure, significantly weakening the power of local unions.

But the city and state’s unions say they are ready.

“The public wants public schools,” Mulgrew said, adding that he believes reform groups are trying to denigrate traditional public education, partially by changing teacher protections.

“We will vigorously defend due process against any assault by so-called reformers,” said Carl Korn, a spokesman for the New York State United Teachers.

--additional reporting by Jessica Bakeman

Update: An earlier version of this article mischaracterized Moskowitz's involvement in New York-based legal action.